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TERMS AND CONDITIONS

1. General Provisions

(1) All our deliveries, services and offers are made subject exclusively to the present terms and conditions even if no express mention of this was made during negotiations. Our terms and conditions of sale apply to all contracts with enterprises, legal entities under public law and special government funds, and also to all future business relations even if they are not expressly agreed again.
(2) Any terms and conditions of the Purchaser which are contrary hereto shall apply only if we have expressly agreed to their application in writing.
(3) The present General Terms and Conditions of Sale shall not apply to contracts in the form of an already existing continuous obligation before January 1st 2003. Up to that date, our former General Terms and Conditions of Sale shall apply. These will be sent without delay if requested.

2. Acceptance of the order and prices

(1) Our sales staff have no authorisation to make verbal collateral agreements or to give assurances which go beyond the content of the written contract. No verbal collateral covenants have been made.
(2) Until we have given our written confirmation of order, all offers and prices are made without engagement.

3. Delivery lead time

(1) Stated delivery dates are approximate and non-binding unless they have been expressly stated to be binding.
(2) The delivery lead time shall begin at the earliest on the date on which the acknowledgement of order is sent but not before the Purchaser has provided all the required documents, permits and approvals, and not before receipt of any advance payment which may have been agreed.
(3) A delivery lead time shall be deemed to have been adhered to if the Purchaser has been notified of readiness for shipment, or the goods to be delivered have left our business premises by the date on which the delivery lead time expires.
(4) In the event of a delay in delivery, the Purchaser may withdraw from the contract after setting a reasonable period of grace and this has expired without effect. In the event of our inability to provide performance, this right shall be available to the Purchaser even without having set a period of grace. A delay in delivery shall be deemed equivalent to inability to provide performance if such delay lasts longer than one month. Claims to damages (including consequential damages) are barred notwithstanding the provisions of Paragraph 5 below. The same applies to the refund of expenses.
(5) The exclusion of liability provided under Paragraph 4 above shall not apply insofar as an exclusion or a limitation of liability for injuries to life, limb or health has been agreed which is based on a deliberate or negligent breach of an obligation on our part or on a deliberate or negligent breach of an obligation by one of our legal representatives or vicarious agents. Nor shall such exclusion apply insofar as the excluded or limited liability for other losses or injuries was based on a deliberate or grossly negligent breach of obligations on our part or on a deliberate or grossly negligent breach of an obligation on the part of one of our legal representatives or vicarious agents. Insofar as we have breached an important contractual obligation or a "cardinal obligation", liability is not barred but is limited to the foreseeable loss or damage which is typical for the contract. The above shall apply analogously to reimbursements for expenses.
(6) The limitation of liability pursuant to Paragraphs 4 and 5 above shall not apply in cases where a fixed-date purchase was agreed between Kaufleute (businesses registered in the Commercial Register).
(7) If unforeseen hindrances occur which are beyond our control and which we cannot prevent by the application of reasonable care under the circumstances of the case - irrespective of whether they occur with us or with a supplier - such as through force majeure (e.g. war and natural catastrophes), delays in the delivery of essential raw materials, etc. - we shall have the right to withdraw from the contract either wholly or in part, or to extend the delivery lead time by the duration of the hindrance. We shall be entitled to the same rights in the event of strikes or lock-outs occurring with us or with our suppliers. We shall inform the Purchaser of such circumstances without delay.
(8) Delivery in instalments is permissible insofar as this causes no disadvantages with respect to the use of the delivered goods.

4. Passage of risk - Packaging

(1) When the place of performance is the Purchaser's domicile, risk passes to the Purchaser when the goods are handed over to it. In cases where the goods are to be sent to the Purchaser, the place of performance is the Vendor's place of business and risk passes to the Purchaser when the goods are handed over to the person responsible for transportation. When the place of performance is the Vendor's place of business, risk passes to the Purchaser when the goods leave the works' premises. Deliveries are made at the Purchaser's expense.
(2) Should the Purchaser so wish, we shall take out transportation insurance coverage for the delivery. Any costs thereby incurred shall be borne by the Purchaser.
(3) Containers and crates remain our property. Containers are to be returned to us carriage paid after unloading. Crates will be invoiced. After the return of the crates in a condition permitting them to be reused, we shall credit them to the Purchaser at two thirds of the invoiced amount. Cartons will be charged for at cost and not taken back.

5. Terms of payment

(1) Unless otherwise stated in the acknowledgement of order (or alternately, in the invoice), the price must be paid within thirty days of invoice date without deduction. In the case of delivery in instalments, each delivery may be invoiced separately.
(2) Should the Purchaser default on payment, we shall have the right to charge default interest at a rate 8% higher than the base rate. We may give proof of higher loss through interest at any time, and bill the Purchaser for this.
(3) Failure to adhere to the terms of payment, default on payment, or any circumstances which are apt to reduce the creditworthiness of the Purchaser shall cause all our claims to fall due immediately.
(4) We are under no obligation to accept bills of exchange or cheques. Amounts credited to our account on the basis of cheques and bills of exchange are always accepted subject to their being honoured (i.e. they are accepted with a view to payment, not in discharge of the debt). Their value date shall be the date on which the amount stated thereon is at our disposal. The discounting charges on forwarding, the stamp tax and the bank charges or collection fees shall be borne by the Purchaser.
(5) Further contractual or statutory claims in the event of default are reserved.

6. Retention of title

(1) We shall retain title to all delivered goods (delivered items) until the Purchaser has paid all current and future claims under the business relationship.
(2) In the event of breach of contract on the part of the Purchaser, particularly in the case of default on payment, we shall have the right to take back the delivered goods. The Purchaser hereby agrees to our taking back the goods in such case. The taking back of the goods shall be construed as withdrawal from the contract only in cases where this is expressly stated. Any costs we incur in taking back the goods (in particular transportation costs) shall be borne by the Purchaser.
(3) The Purchaser shall treat the delivered goods with care. In particular, it shall take out adequate insurance coverage against fire, water and theft at its own expense, as far as possible at their reinstatement value. Insofar as maintenance and inspection work is necessary, the Purchaser must perform this in good time at its own expense.
(4) The Purchaser shall not attach, transfer ownership by way of security or assign the delivered goods or any claims which take their place. In the event of attachments or other third-party interventions, the Purchaser shall inform us thereof in writing without delay.
(5) The Purchaser has the right to sell the delivered goods by way of ordinary business, to process them and to commingle them with other goods. It assigns to us herewith all claims from sales, processing, commingling and such claims as exist on other legal grounds (in particular, claims under insurance policies or on grounds of torts) to an amount corresponding to the total amount of the invoice (including value-added tax) as agreed with us. The Purchaser remains authorised to collect such claims even after their assignment, while our right to collect claims ourselves remains unaffected. However, we shall desist from collecting the claim as long as the Purchaser fulfils its payment obligations, is not in default, no application has been made for insolvency proceedings, and the Purchaser has not ceased to make payments. Should this be the case, however, the Purchaser, at our request, shall disclose to us the claims that have been assigned and the names of the debtors, shall provide all the necessary information, shall hand over all the relevant documents, and shall inform the debtors (third parties) of the assignment.
We may revoke the authorisation to collect in the event that the Purchaser is in breach of contract. Furthermore, we have the right to prohibit the Purchaser from making any further sales, processing or commingling of the delivered goods.
(6) The retention of title also extends to the products created by processing, commingling or conjoining our goods with other goods, namely at the full value of such newly created products. These activities are performed on our behalf so that we are deemed the manufacturer thereof. In the event of processing, commingling or conjoining the goods with goods belonging to third parties whose property right continues to exist, we shall acquire a share of the property therein which will be in proportion to the objective value of such goods.
(7) At the Purchaser's request, we shall release the collateral security due to us insofar as the realisable value of our security exceeds still unsatisfied claims by more than 30%.

7. Defective deliveries

For defects in the delivery, we shall be liable subject to the proper fulfilment of the obligations to inspect and lodge a complaint pursuant to Article 377 HGB (German commercial code) by the Purchaser as follows:
(1) Insofar as the purchased goods are defective, we have the right, at our option, either to repair the defect or to deliver non-defective goods (subsequent performance). A condition for this is that the defect in question is more than merely slight. Should one or both types of subsequent performance be impossible or excessive, then we shall have the right to refuse to provide them. Moreover, we may refuse to provide subsequent performance as long as the Purchaser fails to fulfil its payment obligations to us with respect to the non-defective portion of our delivery.
(2) Should the subsequent performance pursuant to Paragraph 1 not be possible or if it fails, the Purchaser has the option either of reducing the purchase price or of withdrawing from the contract in accordance with statutory provisions.
This shall apply in particular in cases where subsequent performance was culpably delayed or was refused, and likewise when such subsequent performance proves unsuccessful for a second time.
Unless otherwise provided below (Paragraph 3), further claims on the part of the Purchaser are barred, irrespective of the legal grounds thereof (in particular, claims on grounds of a breach of primary or subsidiary contractual obligations, refund of expenses except for those pursuant to Article 439 par. 2 BGB (German Civil Code), illicit acts and any other tortious liability). This shall apply in particular in the case of claims on grounds of damage occurring outside of the purchased item itself, and claims on grounds of loss of profit. It also includes claims which do not result from a deficiency in the purchased goods themselves.
(3) The exclusion of liability set forth in Paragraph 2 above shall not apply insofar as an exclusion or a limitation of liability has been agreed for injuries to life, limb or health which are caused through a deliberate or negligent breach of an obligation on the part of one of our legal representatives or vicarious agents. Nor shall it apply insofar as an exclusion or limitation of liability has been agreed which was caused through a deliberate or grossly negligent breach of an obligation by us or one of our legal representatives or vicarious agents. Insofar as we are culpably in breach of an essential contractual obligation or of a "cardinal obligation", liability is not barred but restricted to the foreseeable damage or injury which is typical for this type of contract. Otherwise it is barred pursuant to Paragraph 2. Furthermore, liability is not barred in cases where, according to the Produkthaftungsgesetz (law on product liability), in the event of defects in the delivered goods, there is a liability for injury to persons or damage to property through defects in privately used goods. Nor does exclusion of liability apply when a warranty has been given, or a warranted characteristic has been guaranteed in the event that our liability is created by a defect falling thereunder. What was said above applies analogously to the refunding of expenses.
(4) Claims arising through recourse to a manufacturer are not affected by the present section.

8. Liability for collateral obligations

If through a fault on our part the delivered item cannot be used by the customer for the purpose intended by the contract, or damage occurs as a consequence of defective performance due to failure to adhere to proposals or advice given before or after execution of contract, then to the exclusion of further claims on the part of the Purchaser, the provisions of Clauses 7 and 9 apply analogously.

9. Withdrawal of the customer and other liability

(1) The provisions set forth below apply to breaches of obligations outside of liability for defects and are not intended to bar or restrict the statutory right to withdraw.
(2) If we are liable pursuant to statutory provisions according to the present terms and conditions for damage caused through negligence, then our liability is limited. Liability exists only if essential contractual obligations or "cardinal obligations" are breached. Such liability is then limited to foreseeable damage which is typical for the contract. This limitation shall not apply in cases of culpable injury to life, limb and health. Nor does this apply insofar as the cause of the injury was deliberate or due to gross negligence on our part, or that of our legal representatives or vicarious agents. Likewise, liability will not be barred in cases where a guarantee has been given to the extent that a breach of an obligation covered thereby gives rise to such liability.

10. Place of performance, place of jurisdiction, applicable law

(1) The place of performance is Stuttgart.
(2) The place of jurisdiction is Stuttgart. We have the right to sue the Purchaser at other admissible places of jurisdiction.
(3) All claims and rights under the contract shall be subject to the laws of the Federal Republic of Germany. Application of the UN Convention on the International Sale of Goods (CISG) is expressly barred.

11. Miscellaneous

(1) The Purchaser has no right to offset claims which we have not acknowledged, which have not yet fallen due for payment or which have not been confirmed by final court decision against our claims against it.
(2) Should particular provisions or parts thereof be or become void, the remaining provisions shall remain enforceable in full.

12. OCTANORM-DOPPELFORM

OCTANORM-DOPPELFORM structures may be made, assembled and dismantled only by authorised person under contract with us. A calculation of the statics and a statics test is required for each structure. We refuse to accept any liability in cases where structures are constructed without the required statics calculations and tests or if they are assembled and dismantled by unauthorised persons.